The Hague/New York – Today, the legal representative for one of the victims in the International Criminal Court (ICC) “Situation in Afghanistan” urged the Pre-Trial Chamber to grant the Prosecutor’s request to open a formal investigation into crimes in and related to the armed conflict in Afghanistan. In January, the Center for Constitutional Rights (CCR) had submitted “victims’ representations” on behalf of two men indefinitely detained at Guantánamo, detailing the torture the men endured in CIA black sites, proxy-detention, and Department of Defense facilities, in support of the Prosecutor’s request. Today, CCR informed the ICC of serious concerns about the physical and mental health of one of the victims, Sharqawi Al Hajj, and the lack of adequate response to his situation by the United States.

“It has been more than one year that the victims in the Afghanistan Situation, including victims of U.S. torture, have been waiting for an answer as to whether the International Criminal Court might provide them with a measure of long-sought justice,” said CCR Senior Staff Attorney and Victims’ Legal Representative Katherine Gallagher. “Today’s update to the Court, like daily news reports from the ground in Afghanistan, demonstrate that each day justice is delayed is one day closer to justice denied.”

The ICC has jurisdiction over international crimes committed on any of the 123 States Parties’ territories, including Afghanistan since May 1, 2003, regardless of the nationality of the perpetrators. The prosecutor’s 181-page request makes clear that the “reasonable basis” threshold is satisfied to trigger an investigation into crimes committed in Afghanistan since May 2003 and on the territory of other States Parties where crimes with a nexus to the armed conflict were committed since July 2002. The ICC investigation could lead to prosecution of members of the U.S. armed forces and the CIA, along with the Taliban and Afghan forces, for crimes against humanity and war crimes.

In recent months, the U.S. has stepped up its attack on the International Criminal Court, with National Security Advisor JohnBolton and President Donald Trump making speeches against any investigation of U.S. crimes in Afghanistan, and threatening sanctions against the Court and prosecution of its judges and prosecutors. As the 123 Member States of the ICC meet in The Hague for the Assembly of States Parties this week, Secretary of State Pompeo called the ICC a “rogue” court that needed to be stopped, in remarks in Brussels at NATO.

“It has been more than 17 years since the Bush administration began its ‘war on terror’ with Afghanistan as central location for its detention and interrogation operations – its torture program. To date, no high-level U.S. civilian, military, or CIA official has been held accountable,” continued Gallagher, who is in The Hague this week. “Rather than pursue accountability at home, the United States is now waging a war of words against the court that is best-suited to address the scale and seriousness of these crimes – the ICC. We are eagerly awaiting a decision that demonstrates the ICC is an independent and impartial institution, which follows the facts and law where they lead, sending a clear message that no one is above the law.”

The ICC is unique among international criminal tribunals in that it allows for victims to directly participate in proceedings, including at the investigation stage. The Center for Constitutional Rights’ victims’ representation detailed the treatment of Sharqawi Al Hajj and Guled Hassan Duran.[1] Before arriving at Guantánamo, where he has been held without charge since 2004, public court documents show Mr. Al Hajj was detained by the CIA in Pakistan, Jordan, Kabul, and Bagram Air Force Base and variously held in solitary confinement, beaten, threatened with electrocution and serious physical violence, kept in complete darkness, subjected to incessant loud music, and hidden from the Red Cross. Public documents show that Mr. Duran, too, was held in secret CIA detention in several locations before he arrived at Guantánamo in 2006. During his time in CIA detention, Mr. Duran was denied medical treatment for a gunshot wound sustained shortly before his capture, stripped naked, screamed at, and threatened with disappearance and isolation. Interrogators also threatened to make life horrible for his family.